Recent Cases

Cases decided by the Supreme Court and the 9th Circuit after January 1, 2015, but included in the 2014-2015 term beginning October 2014, are briefly listed and summarized below.  For a discussion of these cases, log on to the Blog.

Cases decided during the October, 2015 through July 2016 are included. All cases are reviewed in the Blog. Discussed below ae samples of cases reviewed in the Blog.

During the last days of the 2015-2016 term ending in July 2016 the Supreme Court reversed the 9th Circuit again three times. The cases, Kernan v Hinojosa, Johnson v. Lee, and Spokeo v. Robins are all discussed in the Blog. Encino Motorcars LLC v. Navarro, 2016 WL 3369424 (2016).

Also a 9th Circuit panel reversed a district court dismissal of a habeas corpus petition which had concluded petitioner had not properly exhausted his state court motion on ineffective counsel;  also reversing an Oregon state court decision agreeing with the district court; Carrillo-Carrillo v. Coursey, 2016 WL 2994928 (C.A.9)

During the last days in the 2013-2014 term ending in July 2014, the Supreme Court reversed four 9th Circuit cases. A week before the current term beginning in October 2014 before the Supreme Court session had even begun, the Justices reversed the 9th Circuit. Scialabbra v. de Osorio v. 134 S.Ct. 2191 (2014). When the current term opened on October 6, the Court again reversed the 9th Circuit in a unanimous per curiam opinion. Lopez v. Smith, 135 S.Ct. 1 (2014). And, as a portent of things to come in criminal law cases, absent a 9th Circuit rehearing en banc in Deck v. Jenkins, 768 F.3d 1015 (2014) a 2-1 panel decision will be reversed on certiorari. 

Lopez v. Smith (cont.Two years later the panel amended its 2014 order, and six judges dissented from a denial of rehearing.  In scathing language, the dissenting judges cited the repeated reversals  by the Supreme Court in 9th Circuit opinions. In a footnote, the author of the dissent cites the late Justice Scalia and his list of citations for those cases; Deck v.Jenkins, 814 F.3d 954 (9th Cir. 2016 WL 518819 (C.A. 9).

Sifuentes v. Brazeleton, 2016 WL 202349 (C.A. 9):   A panel of 9th Circuit judges finally upheld decisions of the Supreme Court on peremptory challenges under Batson v. Kentucky, 476 U.S. 79 (1986). The panel reviewed all the Supreme Court cases and, in effect, reversed its own court.

The panel summarized the evidence necessary to establish exclusion of black jurors with repeated citations from the Supreme Court, including the comment that appellate judges are inappropriate in reviewing a cold record; the trial judge is in the best position to make that decision.

Smith v. Schriro, Cert denied. 536 U.S.536 U.S. 2242 

In a case only a reader willing to take a course in psychiatry and read an encyclopedia can understand this case.  And, again, another death penalty reversed because the defendant was “mentally disabled” under the Atkins v. Virginia case decided by the  Supreme Court.  Another state case held by the Arizona Supreme Court finding no mental disability overruled on habeas corpus by a federal court. Why the 9th Circuit thinks they know more about the law than the Arizona Supreme Court which held the hearing on the issue of mental disability is incredible. When will two jurisdictions in criminal cases be eliminated, and the 9th Circuit removed from jurisdiction on federal habeas corpus?

The defendant was convicted in 1982.This case was decided in 2016. Atkins was decided in 2002.

Garcia v. Long, 808 F.3d 771 (9th Cir.2015)

The 9thCircuit is determined to ignore AEDPA and ignore state court judgments.  The California Court of Appeals decided a Miranda issue decision in favor of the state. After the California Supreme Court denied review, defendant petitioned the district court which granted the petition.   The 9th Circuit affirmed as above.


The overwhelming evidence in Lopez v. Smith cast no doubt he had killed his wife in their house. Police found Smith’s DNA evidence on the body of the dead victim; on the lethal weapon; on jewelry removed from the house where the murder occurred concealed in the trunk of his car. A criminal evidence expert testified the ransacked house resembled a staged robbery. The jury rendered a guilty verdict.

At the conclusion of the prosecution case the prosecutor obtained a trial court approved jury instruction defining the crime of aiding and abetting in addition to first degree murder instructions already submitted. Defense counsel objected, arguing he had no notice of the change in prosecution theory. All California appellate courts have rejected this argument, as did the trial court and Court of Appeal in this case, on grounds anyone who aids and abets is as guilty as the principle. The 9th Circuit panel on habeas review disagreed and overruled the California courts.

In Lopez v. Smith and DeOsorio v. Mayorkas, the 9th Circuit has repeatedly evaded the restrictions imposed on federal habeas corpus jurisdiction mandated by the AntiTerrorism and Effective Death Penalty Act (AEDPA; 28 U.S.C. 2254). Federal law allows habeas relief only “if the state court decision was contrary to, or involved, an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. 2254 (d) (1). Parker v. Mathews, 132 S.Ct. 2148 (2012).

AEDPA also requires federal courts “deference” to state appellate courts in habeas proceedings. The 9th Circuit panel in Lopez cited only their own precedents, and overruled the conviction on grounds the state appellate court opinion “unreasonable.” The Supreme Court reversed, concluding the 9th Circuit had “time and again” misinterpreted the facts, finessed Supreme Court law under AEDPA, and ignored deference to state courts.

Lopez v. Smith is a heavily cited per curiam opinion without footnotes, but the dissenting opinion in Deck v. Jenkins lists an embarrassing number of Supreme Court cases reversing the 9th Circuit for failing to comply with AEDPA. In one Supreme Court case a Justice singled out the 9th Circuit for repeated violations of AEDPA committed by panels’ misapplication of habeas corpus precedent. In addition, the 9th Circuit has ignored or evaded almost every state court death penalty case for the last decade on habeas corpus grounds despite California Supreme Court affirmation on the merits and the penalty.

Frustrated by 9th Circuit reversals is not a recent event for the Supreme Court. Several years ago the 9th Circuit reversed a California case involving a search and seizure involving the Fourth Amendment. Stone v. Powell, 428 U.S. 465 (1976). Police arrested and searched Powell pursuant to a local vagrancy law and found a weapon involved in his commission of a previous murder. Convicted, the sentence confirmed on appeal, and his petition for habeas corpus denied by the district court, Stone appealed to the 9th Circuit. The panel overruled the conviction on grounds of an unconstitutional vagrancy law.

Not only did the Supreme Court reverse the 9th Circuit, the Justices prevented the court from hearing any future state cases on Fourth Amendment issues. Undeterred, the 9th Circuit has found a circuitous route around this ruling in the civil rights statute. 42 U.S.C. 1983 permits standing to anyone who alleges a civil rights violation to file litigation seeking damages against the individual law enforcement officer and the employer. Because the Supreme Court has held that unlawful use of force on a person in the course of an arrest is an unreasonable seizure under the Fourth Amendment, an individual can file a complaint in federal court for damages under 1983, evading the limitations imposed by AEDPA.

Stone v. Powell is not the only state court case the Supreme Court has reversed and concurrently prohibited the 9th Circuit from hearing future cases. In California, 9th Circuit panels were reversing parole decisions written by state appellate courts. In an unusual exception to restrained judicial language in court decisions, the Justices in a per curiam opinion told the 9th Circuit that state parole is “no part of [their] business,” and to discontinue deciding parole cases. Swarthout v. Cooke, 562 U.S. 216 (2011).

The 9th Circuit has discovered another method of evading AEDPA. In Jackson v. Barnes et al., 749 F.3d 755 (9th Cir. 2014), a state court trial, Jackson was convicted of first degree murder based, in part, on evidence of his statement he made in custody to a deputy sheriff. On federal habeas review the 9th Circuit reversed the conviction on Fifth Amendment Miranda grounds, but the state retried Jackson without introducing the confession. Convicted of first degree murder again, Jackson sued the officer and the County under 42 U.S.C. 1983 asking for damages he endured in the absence of Miranda warnings in the first trial. Although the Supreme Court has barred such an absurd allegation, the 9th Circuit denied the defense motion for summary judgment.

Of all the 9th Circuit reversals the Supreme Court has issued, none is a more severe reprimand than in Ryan v. Schad, 133 S.Ct. 2548 (2013). The Justices had affirmed denial by a 9th Circuit panel habeas corpus petition, and immediately issued the mandate requiring compliance with its opinion pursuant to Federal Court Rules. Instead of complying, the panel ignored the Supreme Court decision and remanded the case to the district court for further proceedings. Upon discovery of this misinterpretation of the record, an angry Supreme Court responded with a finding of 9th Circuit “appellate abuse of discretion.”

Few courts of the United States can find as many excuses to avoid capital punishment as the 9th Circuit. In Wood v. Ryan, 759 F.3d 1076 (9th Cir. 2014) the 9th Circuit 2-1 panel could find no legal error justifying stay of a pending execution in a state court, but decided the inmate had a First Amendment right to know what kind of drugs the State intended to use. The majority panel issued a stay – vacated in 24 hours by the Supreme Court. Ryan v. Wood, 2014 WL 3600362 (U.S.).

Henry v. Ryan, 766 F.3d 1039 (9th Cir. 2014 (Dec.);  The 9th Circuit having reversed almost every case on the death penalty over the last decade invoking a variety of  flimsy excuses and subsequently reversed by the Supreme Court, eventually decided Henry v. Ryan. After the court played games with a collateral case, rehearings and stays, finally decided (after conversing among themselves) something-according to the Chief Judge.  The short decision suggests something is amiss.

Latta.v. Otter, 771 F.3d 496 (9th Cir. 2015) [dissent]: In one of the most eloquent dissenting opinions, Judge O’Scannlain comments on the 9th Circuit panel who wrote  on “opinion” invalidating an Idaho statute prohibiting same sex marriage. The panel not only rejects Supreme Court  precedent, but a federal court invades state authority, removes political disagreement among the citizenry, and impedes the democratic process.
Note: the panel majority consisted of three judges whose decision was never in doubt before the case was even filed. And 9th Circuit judges are named at random?

Wilkerson v. Wheeler, 772 F.3d 563 (9th Cir. 2014) Prisoner’s Rights (Blog)

Doe v. Harris, 772 F.3d 564 (9th Cir. 2014).  The 9th Circuit reverses conviction on state law entitled Californians Against Sexual Exploitation Act  Another 9th Cir. voiding a state statute.

Sessoms v. Grounds, 2015 WL 294273: A 6-5 rehearing on a Miranda issue originally reversed by Supreme Court.  Remanded.  9th Circuit reverses again. Blogged, Feb. 24, 2015. Blogged: Feb. 26, 2015.

Baca v. Adams, 2015 WL 4 68052; 412835: 9th Cir. orders state AG to  dismiss opposition to petition for habeas corpus.  Blogged, 2/24/2015.

U.S. v. Garcia-Santana, 2014 WL 7012412: Immi gration: The state of Nevada requires no evidence of an overt act in conspiracy.  Federal statute does. Therefore, the illegal alien who pled guilty in state court to burglary in 2002 is permitted to stay in country after arrest in 2099 for illegal entry absent evidence of federal conspiracy.

Note: al the cases and discussion below occurred before January 1, 2015 and are no longer reviewed.


This Section summarizes 9th Circuit cases on immigration for the purpose of displaying why the court continues to write incomprehensbile decisions ignoring the Immigration Judge determination of credibility and substituting its own version, ignoring deference to the IJ and imposing the burden of proof on the government. This practice resembles the 9th Circuit court practice in criminal law and habeas corpus cases. The Supreme Court has frequently lashed verbally the 9th Circut for its reversals in state criminal law on habeas corpus.

For a discussion of all non immigration cases, click on the “Blog” cite

The Ninth Circuit Watch has received considerable traffic as it expands its coverage but the volume of cases written by various panels creates a challenge. We originally decided to publish summaries of immigration cases decided by the Ninth Circuit because its panels reverse immigration judges repeatedly on baseless appeals. These panels reweigh the evidence, ignore precedent and criticize an agency confronted with an endless volume of frivolous cases. As of November 1, 2009 we will no longer summarize immigration cases. See, Note, below. The 9th Circuit decisions in  subsequent years are no different.

While Congress struggles to construct walls on American borders, the Ninth Circuit creates a judicial leak of incredible proportions. Immigration is a civil case, not criminal, and federal statutes allow illegal aliens to challenge deportation or withholding of removal on Constitutional grounds applicable to citizens. According to the Ninth Circuit, “it is well established that all individuals in the United States-citizens and aliens alike-are protected by the Due Process Clause [which] incorporates the guarantees of equal protection;” U.S. v. Calderon-Segura, 512 F.3d 1104 ( 9th Cir. 2008). “Well established” in the Ninth Circuit, not in the Supreme Court.

The “well established” doctrine of affording illegal aliens the protection of the Constitution will soon be tested by the Attorney General’s order that the IJ & BIA will no longer accept the defense of “ineffective counsel.” Parenthetically, counsel are not required in immigration cases, a category of administrative proceedings, not civil or criminal trials.

Equally incomprehensible is the frequent invocation of rules in criminal cases applicable to immigration hearings. The Supreme Court has adopted an approach to sentencing in criminal cases (categorical and modified categorical) to determine the scope of district court judges sentencing authority. The Ninth Circuit has applied that rationale to immigration hearings to allow cancellation of removal, asylum, or the Convention Against Torture.

Recent Cases on Immigration:

Note: As of November 1, 2009.the Ninth Circuit Watch will no longer summarize immigration cases decided by the Ninth Circuit. Aside from the inordinate volume, its indefensible decisions, the re weighing of the evidence, the favoritism toward illegal aliens, the rhetorical thrashing of IJs and predictable results allowing illegal aliens to remain in the country is deplorable, See, Aguilar-Turcios v. Holder, 582 F.3d 1075 (9th Cir. 2009). Because almost all immigration cases are fact intensive, the Supreme Court cannot easily write “bright lines” although Nijhawan v. Holder, 129 S. Ct. 2294 (2009) is of some help. Given the immigration policy of the current administration and the Attorney General there is no potential for change. Unfortunately the American people will continue to pay the exorbitant cost of judicial intervention in simple agency decisions.

As a final example, see Aguilar- Turcios was ordered deported in 2003. The Ninth Circuit decided his case in 2009.

Immigration: Due Process

Pangilinan v. Holder, 568 F.3d 708 (9th Cir. 2009)

Quotation from this Ninth Circuit Memorandum Opinion: “Here, the immigration judge. . .went to some length to ensure the fairness of the [hearing],” somehow violated due process when he asked if the applicant to “anything to add in support of his claim.” The Ninth Circuit reversed and sent it back to the IJ. To do what? And the court worried about his “expulsion” from the United States.

Immigration: Moral Turpitude

Castillo-Cruz v. Holder, 581 F.3d 1154

Receiving Stolen Property is not a crime of moral turpitude.

Immigration: Lawful Permanent Resident Status for Illegal Entry by Aliens

Eduardo Torres-Chavez, 567 F.3d 1096 (9th Cir. 2009)

Chavez entered the United States illegally in 1981. Six years later he attempted to take advantage of Congressional amnesty under the old Immigration Reform & Control Act. To obtain temporary status, the applicant must fill out a form. Chavez filled out the temporary status form in 1988. An applicant must file for permanent status within three years. Five years later, in 2003, he made inquiry about his status and was given a Notice to Appear for deportation. At the hearing, the IJ ordered deportation. Chavez appealed to the Ninth Circuit (on Constitutional grounds) who denied his petition in 2009.

Chavez, In this country illegally from 1981 to 2009, alleges violation of Due Process.

He also alleged”ineffective counsel,” regarding the same lawyer who represented him on appeal, briefed the case and orally argued the case in the Ninth Circuit.

Immigration: Court Appoints Counsel for Illegal Alien

Owino v. Holder, 575 F.3d 956 (9th Cir. 2009)

Entering the United States in 1998 on a student visa, Owino was convicted of robbery in 2003. Noticed to appear before an IJ after his release, he applied for asylum. The IJ held a hearing and ordered deportation, finding Owiono not credible and had provided no evidence to warrant asylum. The BIA reversed part of the case based on the record regarding lack of evidence between corruption in Kenya and Owino, but affirmed on other grounds. Owino appealed to the Ninth Circuit, alleging the IJ used the wrong standard.

In a separate case Owino v. Holder, 575 F.3d. 952 (9th Cir. 2009) Owino files a petition for habeas corpus alleging he should be released on grounds he had been detained in excess of the time allowed by the Supreme Court. But the record shows he refused to cooperate with removal despite Kenya’s willingness to receive him.

Petition granted; evidentiary hearing ordered; and counsel appointed to represent him. Who pays for that?

And Owino alleged other grounds which the Ninth Circuit panel did not reach. Another appeal is in the making.

Immigration: Drunk Driving (three times) Not a “Serious Crime” Warranting Deportation

Delgado v. Holder, 563 F.3d 863 (9th Cir. 2009)

Delagado was arrested and incarcerated three times for driving under the influence of alcohol. According tao the Ninth Circuit, that offense is dangerous but not a “particularly serious crime” under the the asylum statute. The BIA must reconsider deporting him. Do the citizenry of the United States want this man to remain in the country?

Immigration: Social Justice Applied

U.S.A. v. Velasquez, 568 F.3d 1139 (9th Cir. 2009)

Here is the opening sentence of the Ninth Circuit in this case: “Valasquez waived his right to appeal and was deported in 1994 . . . in which the IJ did not advise him of the availability of relief from deportation . . . He had a United States wife (who he married while in the United States illegally) and two young United States children (code words for “born in the United States”) . . . and would surely have been a strong candidate for . . . discretionary relief (from deportation ) had he applied for it . . . Over ten years later in 2006, [he] was indicted for illegal entry [in the United States].”

Predict the result.

Immigration: Class Actions for Illegal Aliens

Rodriguez v. Hayes (Customs Officer) 578 F.3d 1032 ((the Cir. 2009)

Rodriguez entered the United States illegally, committed a deportable crime, and the IJ ordered him deported. He filed an appeal in the Ninth Circuit which stayed his deportation. He received three custody hearings before customs officials but no decision was reached pending his appeal. In detention, he demanded a bond hearing and ultimately sought review in the Ninth Circuit. Not only did he want a hearing, he wanted the court to appoint counsel.

The court found other petitioners in the same general category demanding a bond hearing and decided they could form a class and file a class action under Rule 23. Class actions require all putative members to comply with Rule 23 requirements of typicality and commonality-plus numerousity. In this case? three members, each with allegedly the same legal issue. But obviously each had different reasons for delaying deportiaon. Not a problem for the Ninth Circuit, and the court told the district court to determine formation of sub classes. In other words, none of the cases were alike, i.e., numerousitiy was lacking, as well as typicality and commonality.

Immigration: Upholding a Conviction (Eureka)

U.S. v. Cardenas-Mendoza, 579 F.3d. 1024 (9th Cir. 1024)

The defendant was arrested at the Mexican border by agents and subsequently charged with unlawful possession of drugs concealed in a box inside his car. The usual defense: “I was just driving the car for a friend and know nothing about drugs.” At trial, the government could not locate the grand jury transcript of one of the arresting agents, and defendant contended he was deprived of the right to cross examine the witness who testified. The other agent did testify to the events; another witness testified the box had been repeatedly used; another witness testified to additional facts. The only issue for the jury was the validity of the defense.No one contended the agents didn’t find the drugs in the box.

Convicted, the defendant appealed. On appeal to the Ninth Circuit, the court actually reached the correct result and affirmed the conviction. The lost transcript of the agent who had testified before the grand jury did not affect the outcome. The jury simply disbelieved the defendant. The Ninth Circuit judges who wrote this opinion are a small minority of appellate judges who understand trials, not hairsplitting academic arguments oblivious to jurors.

Note: This illegal alien, attempting to enter the United States, was advised of his right tot counsel and silence under the Fifth Amendment Miranda rule. And, he was sentenced to prison and then placed on supervised release. Why not just deport him?

Prisoner’s Rights

Conn v. City of Reno, 591F.3d 1081 (9th Cir. 2010); [dissent filed from denial of petition for rehearing en banc January 8, 2010.

The facts of this case unhappily include the suicidal death of a woman whose family sued the officers who civilly detained her and the Reno Police Department. The rationale of disallowing qualified immunity to Reno police officers and the City of Reno generated this dissent upon denial of a request for a rehearing en banc:

“Until this opinion came along, police officers weren’t required to serve as babysitters, psychiatrists or social workers, and judges didn’t run suicide-prevention programs. Responsibility for preventing suicide rested with the individual and the family, not the state. But the panel has discovered that the Constitution demands a change in job description: Judges will henceforth micro manage the police, who in turn will serve as mental health professionals. The panel’s reasoning has no stopping point, and our decision to let it stand threatens unprecedented judicial intervention in our local institutions.”
“At bottom, this case raises the question of whether the state has a legal (as opposed to moral) obligation to provide for the health of its citizens. We have repeatedly rejected the idea that such an obligation exists . . . This is in part because the benevolent welfare state is in tension with our tradition of liberty and individual dignity: What the state provides for you, you do not provide for yourself, and as the sphere of public largesse grows, the realm of private initiative retreats. It also reflects a judgment that any redefinition of the role of the state should occur under the supervision of democratically elected officials, not unaccountable federal judges. States may obligate themselves, but they should not have novel duties thrust upon them by judicial fiat.”
Constitutional Law: Subverting the Fourth Amendment

U.S. v. Young, 573 F.3d 711 (9th Cir. 2009)

It should be remembered that every time a court excludes evidence under the Fourth Amendment, a guilty party goes free. The American people suffer the consequences of the “exclusionary rule” initially invented by the Supreme Court to deter unlawful police activity. In Young, the hotel staff mistakenly issued him the wrong key to his room. In his absence, a staff member went to the room to rectify the mistake and observed a firearm in plain sight, a violation of hotel policy. Summoned by hotel management, a police officer entered the room with a staff member and seized the gun.

Violates the Fourth Amendment says the Ninth Circuit in excluding the evidence. Is this the kind of police conduct that should be condemned? According to the Ninth Circuit, this perfectly reasonable act by the officer violated Young’s privacy because he had not been evicted despite the fact he was in the wrong room. Young was charged as a felon in possession of a gun, the indictment will now be dismissed, and Young will go free (absent a rehearing, rehearing en banc, or cert. to the Supreme Court.

Immigration: Operating a “Chop Shop” Not An Aggravated Felony Warranting Deportation

Carrillo-Jaime v. Holder, 572 F.3d 747 (9th Cir. 2009)

California prohibits anyone from dismantling vehicles or vehicular parts (“chop shop”) known to be illegally obtained by “theft”; Pen. Code 10801. Carrillo-Jaime, a lawful permanent resident (in the U.S. because of amnesty) was convicted of violating this statute and ordered deported as having committed an aggravated felony; 8 U.S.C.1101(a). (Carrillo-Jaime also was convicted of receiving stolen property several years ago.) He appealed to the Ninth Circuit. In a decision only a rhetorician could love, the Ninth Circuit panel weaves a rhetorical web around the word “theft”, distinguishing fraudulent conduct in the execution and fraud in the inducement. Somehow operating a “chop shop” does not become an aggravated felony as a”theft offense” required by U.S.C, 1101(a).

The dissenting judge helps out the government by alerting it to the National Motor Vehicle Theft Act (18 U.S.C. 2312) or under another federal statute prohibiting fraud in excess of $10,000, a case discussed below.

Immigration:IJ Denies Continuance of Hearing to Illegal Alien Living in United States Fourteen Years

Manik Ahmed v. Holder, 569 F.3d 1009 ( 9th Cir. 2009)

Manik Ahmed entered the United States illegally in1995. In 2001 he applied for and received labor certification from the Dept. of Labor (apparently the Dept. ignored his illegal entry). In 2003 he applied for a visa but the government initiated removal proceedings against him. In 2004 he appeared for an immigration hearing but his visa petition had not been processed. Continued for six months by the IJ. His visa request was subsequently denied, but he appealed and requested the IJ for another sis month continuance. The IJ denied his request . Upon appeal of that order, Ahmed filed a petition for review in in the Ninth Circuit. In 2009 the court reversed the IJ decision to deny the request for a continuance.

This case should have been resolved on one paragraph. Ahmed entered the country illegally and sought no application for asylum after fourteen years living in the United States. The Ninth Circuit held that failure of the IJ to explain her denial of the second request for a continuance was ground for reversal.

Note: The U.S. Citizenship and Immigration Service maintains a web site: How Do I Appeal Denial of My Petition or Application ( How helpful.

Immigration: The Cost of Immigration

Nadarajah v. Holder, 569 F.3d 906 (9th Cir. 2009)

Arguments over the cost of immigration to the taxpayer seldom, if ever, include the costs not only of IJ salaries, prosecution costs, courtroom costs and case log backup. The Ninth Circuit just awarded $156,778.68. in attorney fees to immigration lawyers who represented an alien seeking asylum. Reading the decision of the court will require several hours as the panel discusses the fee issue endlessly.

Here is what the dissenting judge wrote: Today the court approves fees well in excess of the amount Congress deemed appropriate when enacting the Equal Access to Justice Act (“EAJA”), While I agree that Nadarajah is entitled to a fee award, and I concur in the number of hours approved as to each attorney, I believe the court should follow the legislatively imposed compensation guidelines for public legal counsel. While this was undoubtedly a complex immigration case, I do not think it warrants fees that dwarf not only the congressionally authorized EAJA fees, but also those awarded from the public fisc to lawyers handling the most complicated cases in the circuit-i.e., capital habeas corpus appeals. I respectfully dissent.”
Immigration: Supreme Court Reverses (Indirectly) a Ninth Circuit Immigration Case:

Nijhawan v. Holder, 129 S.Ct. 2294 (2009)
The Supreme Court has concluded its 2008-2009 term by reversing fourteen out of fourteen Ninth Circuit cases but this embarrassing record does not include cases previously decided by the Ninth Circuit that are now overruled; Nijhawan v. Holder, 129 S.Ct. 2294 (2009).

Federal law consists, in part, of two different statutes the courts have used but interpreted differently in unrelated contexts. Under the Armed Career Criminal Act (ACCA) a sentencing court may increase the sentence of a defendant in a criminal case who has been convicted of prior “violent felonies” as defined in the statute. Under a different Act, (INA) an alien convicted of an “aggravated felony” is subject to deportation if the fraud exceeds $10,000.

A sentencing court in a current criminal case must determine whether a prior conviction, or plea, qualifies as a “violent felony” to enhance the sentence, or in a deportation hearing the IJ must determine whether the prior conviction is an “aggravated” felony warranting deportation. In each case the prior court proceedings are marginal or uninformative. In Nijhawan, the question becomes: what records of the prior proceedings can the IJ consider.

The Supreme Court has used the terms “categorical approach” (generic definition of the crime) and “modified categorical approach” (fact specific circumstances) in attempting to resolve this issue in criminal cases and deportation cases respectively. Cases in the Courts of Appeal are legion.

In Nijhawan the Court ruled that the IJ judge should not read the ACCA definition of criminal fraud (generic )into the civil proceeding of deportation if the petitioner was previously convicted of fraud. The IJ can consider not only the bare record of the prior conviction but the facts and circumstances (facts and circumstances specific) of that case in determining whether the fraud exceeded $10,000.

Although Nijhawan could be confined to its application of fraud statutes, it overrules the Ninth Circuit opinion in Kawashima v. Mukasey, 530 F.3d 1111 (9th Cir. 2008) and the cases upon which it relies. The Ninth Circuit used the wrong test.
See, Blog, July 5, 2009.

On appeal from a decision by an IJ ordering deportation, the Ninth Circuit often refers to the petitioner as a “lawful permanent resident.” To the uninitiated, this characterization connotes an individual lawfully in the United States as distinct from an alien who entered illegally (“entered without inspection”) as the Ninth Circuit employs the euphemism). In fact, the description “lawful permanent resident” refers to an alien who entered the United States illegally and obtained amnesty under the Immigration Reform and Control Act (IRCA), an oxymoron of the first order. The nomenclature of “lawful permanent resident” is clearly misleading, even if legally descriptive.
IRCA created a one year window during which an alien who unlawfully entered the United States before January 1, 1982 could obtain legal resident status; 8 U.S.C.1255 (a); 245A of the Immigration and Nationality Act. To achieve this objective the illegal alien must fill out a form (I-688) to obtain temporary lawful resident status between May, 1987 and May, 1988. If successful in achieving temporary lawful status, the alien can apply for permanent lawful resident status within 48 months.

In Torres-Chavez v. Holder, 567 F.3d 1096 (9th Cir. 2009) (see below) the petitioner applied for lawul permanent status eight years after filing for temporary legal status. INS agents arrested him. Apparently no one monitors applicants who sign up for temporary status and are succesful but never show up for permanent status.


Immigration: Ineffective Counsel in Immigration Cases

Torrez-Chavez v. Holder, 567 F.3d 1096 (9th Cir. 2009)

Torrez-Chavez entered the U.S. illegally in 1981 (or in Ninth Circuit euphemism, without authorization) and attempted to take advantage of the amnesty provisions of the Immigration Reform & Control Act (which does neither). In 2003, after failing to comply with its provisions for varying reasons, INS agents arrested him and the Immigration Judge ordered his deportation.
Torrez-Chavez retained an attorney who conceded removability but sought cancellation. Subsequently Torrez-Chavez sought to re open the hearing alleging his counsel was “ineffective” for a variety of reasons. The same attorney filed an appeal of the IJ decision in the Ninth Circuit and participated in the oral hearing.

Removal proceedings are civil and and litigants have no right to counsel under the Sixth Amendment to the Constitution which allows counsel only in criminal proceedings ( Lara-Torres v. Ashcroft, 383 F.3d 968 (9th Cir.2004); Nehad v. Mukasey, 535 F.3d 962 (9th Cir. 2008) unless representation is so ineffective it deprives a client of due process of law under the Fifth Amendment and deprives the applicant of a “fair hearing.”

The Ninth Circuit panel cited the U.S. Supreme Court case of Strickland v. Washington, 466 U.S. 668 (1984) as the starting point of its analysis but that court has never held “ineffective counsel” applicable to immigration hearings under any theory. The former U.S. Attorney General removed motions to cancel deportation (or other grounds for removal ) based on allegations “ineffective counsel” as a matter of government policy. The current Attorney General reversed this provision and will not apply it. The courts will now receive more applications on this ground further delaying deportation.

Immigration: Overstaying Visa for Twenty Years
Delgado v. Holder, 563 F.3d 863 (9th Cir. 2009)
Delgado entered the United States in 1989 under a non immigrant visa. He was subsequently convicted three times for driving under the influence of alcohol. In 2001 the government finally decided to deport him and the immigration judge (IJ) denied Delgado’s petition for cancellation of removal and asylum. Delgado appealed.

On the petition for cancellation of removal, the Ninth Circuit panel held Congress had stripped the court of jurisdiction to hear appeals from BIA decisions, and could not afford Delgado relief. According to the relevant statute, the Ninth Circuit could not overrule the Bureau of Immigration Appeals (BIA) ruling that Delgado had committed a “particularly serious crime” and subject to deportation.

But the statute applicable to asylum read differently, and the court did have jurisdiction over whether Delgado had committed a “particularly serious crime.”

The court admitted driving under the influence was “dangerous”, but not “serious.” In other words, Delgado did not injure, maim or kill anyone so the IJ should consider the merits of his asylum petition.

Apparently three convictions for drunk driving is “serious” but not “dangerous.” Aside from this linguistic hairsplitting, Delgado can drive drunk for as as many times as he wants without deportation. Just serve the sentence and return to society-unless his frivolous petition for asylum is denied.

The Ninth Circuit continues to review of administrative hearings conducted by IJs as though the procedure was a criminal trial. In fact, in another case, the Ninth Circuit reversed the IJ because the petitioner alleged “ineffective counsel.” This is the popular defense of the Ninth Circuit in reversing trial courts in death penalty cases. The current Attorney General is reviewing a decision of the previous AG eliminating the ridiculous interpretation of “ineffective counsel.”

This case is not final. The opinion in Delgado v. Holder had granted a rehearing from its previous decision (546 F.3d 1017 (9th Cir. 2008) and is allowing further petitions for rehearing of its current decision en banc.

And this appeal was written in 2009, twenty years from entry into the United States tand eight years from denial of the petitions.
Immigration: Civil Rights:

Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th 2009).

Arizona, a state repeatedly attempting to control immigration despite the Ninth Circuit, enacted the Legal Arizona Workers Act sanctioning employers who hire illegal aliens by revoking their business licenses . Surprisingly, the Ninth Circuit upheld the legislation.

A petition for cert has been filed.


Latin Cross: Buono v. Kempthorne, 527 F.3d 758 (9th Cir. 2008)

The Supreme Court has granted cert. in the Ninth Circuit “Latin Cross” case discussed in the Blog;

Buono v. Salazar, 129 S.Ct. 1313 (U.S.).

The Supreme Court reversed: Salazar v. Buono, 2010 WL 1687118; Reported in the Blog

Immigration: (See, Immigration cases generally, below)

Brezilien v. Holder, 569 F.3d 403 (9th Cir. 2009)

In reviewing Immigration Judge decisions, or appeals to the BIA, the Ninth Circuit repeatedly rearranges the facts, ignores credibility findings and invents some reason to reverse the BIA. In Brezilien v. Holder a Ninth Circuit panel accuses the Immigration Judge/BIA of “improper fact finding.” The alien illegally entered the United States in 1991 (inexplicably granted parole in the United States); was convicted of aggravated assault in 2000; and immigration officials have been trying to deport him ever since. Brezilien visited his native country several times in the interim, despite his claim of asylum and torture, with no adverse consequences. Despite this obvious frivolous appeal from his latest hearing, the Ninth Circuit sent the case back for further hearings in another unnecessary and endless discussion of asylum and withholding of deportation.

Fourth Amendmen: San Francisco Jail “strip search” The Ninth Circuit has ordered a rehearing en banc; 2009 WL 467310 (C.A. 9). This case was reported in the Blog.

Prisoner’s Rights :

Foster v. Runnels, (Warden), 554 F.3d 807 (9th Cir. 2009)

A state court prisoner (Foster) filed a 1983 action in federal court against the warden and a corrections officer. Under prison policy, a prisoner who interferes with a corrections officer in the service of meals is disqualified from certain benefits, including meals. When Foster refused to remove paper from an observation window of his cell, the corrections officer reported the violation and imposed prison policy depriving him of a few meals. According to the Ninth Circuit, this decision deprives the prisoner of his Eighth Amendment Right not to be subjected to cruel and unusual punishment.

In a case that should have been dismissed in one paragraph, the Ninth Circuit panel writes endlessly about prisoner’ rights and particularly the right to meals. This right is “clearly established” and therefore the corrections officer is denied immunity. It is difficult to characterize this case. “Silly” comes to mind. The Ninth Circuit assumes judges know how to manage prisons, including a frivolous charge such as this, better than those who do manage prisons and people like Foster.

Arrest: An en banc panel has reversed its three judge panel in Fisher v. San Jose, 558 F.3d 1069 (9th Cir. 2009). The original opinion held that officers should have obtained an arrest warrant for the arrest of an inebriated and armed man who threatened to shoot officers if they attempted to enter his house. Reviewed in its original opinion and the en banc opinion; See, Blog.
Qualified Immunity: Public officials are entitled to immunity from suit if their actions comport with “clearly established” Supreme Court law. Immunity is a defense to suit by the plaintiff, not an affirmative defense, and defendant may raise this issue prior to trial. If a court denies the motion, this ruling qualifies as an interlocutory order but immediately appealable.

The Supreme Court had adopted an analytic framework for qualified immunity cases but in Pearson v. Callahan, 129 S.Ct. 808 (2009) the Justices abandoned this rule as mandatory and reframed the analysis as discretionary. Pearson is the basis for reversing two Ninth Circuit cases as described in the Blog; Hust v. Phillips, 477 F.3d 1070 (9th Cir. 2007); Rodis v. City and County of San Francisco, 499 F.3d 1094 (9th Cir.2007). Both cases decided by the Ninth Circuit have been reversed by the Supreme Court and should be dismissed on remand to the Ninth Circuit.

Jury Instructions:The Supreme Court reversed the Ninth Circuit again in Hedgpeth v. Pulido, 129 S.Ct. 530 (9th Cir 2008) See the Blog posted on Dec.11, 2008 for an extensive discussion of the case. Here is an excerpt from the Blog:

“As predicted, the Supreme Court reversed the Ninth Circuit; Hedgpeth v. Pulido, 129 S.Ct. 530 (2008). In a unanimous decision the Court criticized the Ninth Circuit for categorizing an erroneous jury instruction as “structural.” The trial court had read two instructions to the jury on accomplice testimony, one of which was erroneous. The Supreme Court not only wrote that the Ninth Circuit had used the wrong legal test, the panel had not determined whether the error was harmless under Supreme Court law.”
This case commenced in state court, and the conviction was affirmed on appeal. On habeas corpus in federal court the Ninth Circuit ignored the state court conviction. Another reversal.

Immigration Decisions (as of July 19, 2009); See, Above

Here are examples of immigration cases. If you are “coming to America,” enter in any western state under the jurisdiction of the Ninth Circuit. The court will hear your case no matter how frivolous, reweigh the evidence, bash the Immigration Judge, introduce new law, cite the Constitution and criticize counsel.

B.del C.S.B., a Minor, 559 F.3d 999 (9th Cir. 2009)

A married couple gave birth to a child in Mexico and both entered the United States illegally. Their marriage suffered and the mother again illegally entered the United States with the child. The father remains in Mexico and seeks custody or visitation of the child. The Ninth Circuit reviews a district court judge ruling that divorce proceedings should be under Mexican law in Mexico because all parties are illegal aliens.

On appeal, the Ninth Circuit cites the Hague Convention on the proper venue for various “proceedings” involving divorce among diverse national parties and holds that the”proceedings” should be held in the United States regardless of immigration status. In other words, illegality of entry by all parties is irrelevant. And who pays the cost for this? and who contributes to the backlog in the Ninth Circuit?

Note: this decision is so bizarre it is reported separately but other immigration decisions are reported below.

The Supreme Court has granted cert. in an immigration case ( U.S. Miranda-Lopez, 532 F.3d 1034 (8th Cir. 2008) closely related to a Ninth Circuit case on the issue of identity theft. In Flores-Figueroa, 129 S.Ct. 1886 (2009) the Supreme Court

clarified the elements necessary to convict aliens on grounds of their knowledge, or lack thereof, of possessing a false document of a specific person.

Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009)

The BIA ordered removal of the petitioner who had “entered the U.S. in 1983 without inspection” (the Ninth Circuit euphemism for illegal alien). In 1990 he was convicted of felony theft and sentenced to two months imprisonment (but not deported). Years later, he was charged with, and pled guilty to, aggravated drunk driving and driving without a license. He admitted guilt. Incredulously, he subsequently successfully petitioned for adjustment of status to lawful permanent resident-again without deportation). One year later he was arrested and pled guilty to the same offense and sentenced to prison. And placed on probation!

The DHS finally instituted removal proceedings alleging Campos committed a crime(s) of moral turpitude based on the two aggravated drunk driving cases; 8 U.S.C. 1227. The IJ ordered his removal and he appealed to the Ninth Circuit.

The Ninth Circuit finally got it right. After a lengthy discussion on the application of the words “moral turpitude” the majority of the court held the two aggravated crimes qualified and confirmed the order of deportation. Amazingly, a dissenting judge disagreed.

Why would anyone in the world want to allow this man to remain in the United States? The Ninth Circuit has interpreted “moral turpitude” in other cases, never unanimously agreeing on the scope of the language. Congress should make drunk driving per se a removable offense.

Soto-Olarte v. Holder, 553 F.3d 1089 (9th Cir. 2009)

The applicant submitted his declaration in support of his petition for asylum but did not explain the significant discrepancies contained in the the police report. The IJ found him “not credible”. The Ninth Circuit reversed on grounds the IJ did not offer applicant an opportunity to explain the inconsistencies.

U.S. v, Esparza- Herrera, 557 F.3d 1019 (9th Cir. 2009)

Aggravated Assault is not a “crime of violence” under U.S. Court sentencing sidelines despite the “common sense” application of the term (quote from the decision). Not an immigration case per se but sentencing of a deported illegal alien who unlawfully entered the country. Dissents from other judges.

Sun v. Mukasey, 555 F.3d 802 (9th Cir. 2009))

The Ninth Circuit panel opens with this language: ” Sun is a native and citizen of China, and she is also a battered spouse.” The reader already knows the result, and also notes the absence of any statement as to her method of entry into the United Stares.

At her immigration hearing the IJ rejected all her reasons for entry and ordered her removal in 2004. Sun failed to appear and sought no review of the IJ decision. Two years later, after having successfully qualified in the interim under the Violence Against Women Act (VAWA), she filed for review of the original IJ decision.

Apparently nobody bothered to ask in her application for VAWA whether she was a fugitive. “Irrelevant” holds the Ninth Circuit panel, she is not a fugitive now, therefore she can seek review despite her failure to appear and the failure to file timely for review of the IJ decision.

In other words, disregard the order to leave the United States, remain here as a fugitive, file for adjustment of (immigration) status by concealing her fugitive status and pay no penalty.

Of course she includes the standard “ineffective counsel” objection.

Ramirez-Altamirano v. Mukasey, 554 F.3d 786 (9th Cir. 2009)

Most people would not think the Equal Protection Clause of the Fourteenth Amendment applied to illegal aliens. Not the Ninth Circuit. Altamirano entered the country illegally and was convicted of a drug possession case in state court. Placed on probation, he ultimately obtained expungement of his conviction (apparently his status as an illegal alien was irrelevant). Several years later he was convicted of another drug violation. Altamirano contended his prior expunged conviction entitled him to cancellation of removal. The two judge majority agreed. Under federal law a first offender can expunge his conviction with no consequences. But the instant case involved a state law conviction. The Equal Protection Clause allows him to assert cancellation of removal under the federal statute. The dissent proves otherwise.

Norberto Salazar-Luvano v. Mukasey, 551 F.3d 857 (9th Cir. 2008).

Salazar was charged in 1987 of Aiding & Abetting an Escape from Custody (18 U.S.C. 751) for attempting to free illegal aliens who had been apprehended at the border although no judicial proceedings had been initiated. Convicted and sentenced, in the next fourteen years Salazar was convicted of six misdemeanor charges. In 2001 he was arrested for the same violation of 18 U.S.C. 751and charged with removability under the relevant INA statute for having been convicted in 1987 of an aggravated felony, i.e., “obstruction of justice.”
Salazar sought cancellation of removal on grounds his 1987 conviction was not an “aggravated felony”. In another academic hairsplitting, the Ninth Circuit held that no “proceedings” against the illegal aliens had been initiated in 1987 as required by the language of the “obstruction of justice” statute and therefore Salazar’s conviction was not an aggravated felony.,

Do the immigration laws want to retain people who aid and abet illegal entry of aliens twice? And, who have been convicted of six misdemeanors? The Ninth Circuit sends this case back to the IJ to determine whether to exercise discretion to allow Salazar to remain in the United States.

The court conveniently ignores any reference to any current or past prosecution of the 2001 offense. And why did it take this case seven years to conduct? 12/30/2008

Renteria-Morales v. Mukasey, 551 F.3d 1076 9th Cir. 2008); previous opinion in 532 F.3d 949 (9th Cir. 2008) withdrawn.

Renteria, a citizen of Mexico but allegedly became a lawful permanent resident, was charged in 1998 with sale of narcotics; pled guilty; released on bail and fled. In 2004 she was arrested attempting to enter the United States and subsequently changed with “Bail Jumping;” 18 U.S.C. 3146. In 2005 the government sought her removal under that statute for failing to appear on the narcotics charge.

The IJ ordered her removed and she appealed, arguing the magistrate judge had “directed” her to appear (on the narcotics charge) and notice did not qualify as a court “order” under the statute. Further, the Information might have charged her as failing to appear as a “material witness.”

As the dissent in this case points out, the majority decision (2-1) is a complete misapprehension of criminal procedure in federal court. There is no procedural distinction between an “order” to appear and a “direction” to appear. Further, the Information charged Renteria “in connection with a charge of [sale of narcotics], a felony. If she was ordered to appear to testify against someone as a material witness, the Information would have charged her failure to appear in response to a subpoena. Given the allegedly ambiguous “order” the court granted her petition. 12/12/2008

Constantina Mota v. Mukasey, 543 F.3d 1165 (9th Cir. 2008)

The petitioner entered the United States illegally with two children and bore three more in this country. Convicted of child abuse in 1989, under California law she served thirty days in custody and released without question of her immigration status. She was notified to appear for deportation two years later. Three years later she attended her scheduled hearing with various objections to deportation. After a continuance, one year later she appeared again at a hearing; the IJ denied her petition based on her conviction and granted voluntary departure. One year later she appealed. Two years later the BIA dismissed her appeal. In 2008 the Ninth Circuit held the statute cited by the IJ was not retroactive and granted her petition.

Nine years in the United States illegally. Five children to educate in public schools and no evidence of any husband. Endless hearings in state court for prosecution of child abuse; numerous IJ appearances; a failed mediation ordered by the Ninth Circuit); an appeal. 9/17/2008

Khunaverdiant v. Mukasey, 548 F.3d 760(9th Cir. 2008):

The time for filing a petition for asylum is one year from the time of arrival in the United States. The IJ found the applicant did not meet this statutory deadline (the applicant snuck in). Judicial review of factual findings is jurisdictional and precluded from review in federal court; 8 U.S.C. 1158 (a) (3). But according to a Ninth Circuit panel, the date of arrival is a mixed question of law and fact, so the court has jurisdiction. Apparently calendar dates are not factual. 11/18/2008

Also, no corroboration of an applicant’s testimony at an IJ hearing is necessary to establish asylum. It does not occur to the Ninth Circuit that the hearing officer concluded the applicant lied. And the applicant’s evidence of his treatment in Iran is “unrefuted.” Apparently the IJ must travel to Iran to contradict the applicant.

Flores-Torres v. Mukasey, 548 F.3d 708 (9th Cir. 2008): Petitioner is in custody awaiting removal but contends he is a citizen. Instead of filing under conventional INS law, Flores invoked habeas corpus contending his detention of two years in unlawful. Having had two years to proved his is a citizen apparently is not enough time according to the Ninth Circuit. Petition granted (in part).11/10/2008

Ahmed v. Mukasey, 548 F.3d 768 (9th 2008): Counsel was “ineffective”, Apparently the NInth Circuit thinks the rule for reversal of a criminal conviction based on “ineffective counsel” applies in immigration. Immigration is an administrative hearing, not a trial, and no Supreme Court case has held a BIA decision is subject to reversal on those grounds. Petition granted. 11/19/2008

Hakopian v. Mukasey, 2008 WL 4927347 (Non. Pub.)

Timely filing of a petition for asylum is a question of law, permitting the court to resolve questions of law under REAL Act. Only in the Ninth Circuit. Petition granted. 11/19/2008

Asylum and the Convention against Torture are the current favorite allegations for illegal aliens.

Montero v. Mukasey, 548 F.3d 1248 (9th Cir. 2008). This is classic. Montero entered the country illegally four times and each time given voluntary departure; each time he failed to appear.In 1993 he pled guilty to possession of cocaine. In 1995 he was arrested again attempting to enter the country. He filed for adjustment of status alleging he married a U.S. citizen. Denied by the BIA, he appealed to the Ninth Circuit who wrote an opinion denying his appeal on other grounds. The cost to taxpayers?


Karapetyan v. Mukasey, 543 F.3d. 1118 (9th Cir. 2008)

Karapetyan entered the country legally in 2000 and was permitted to remain until 2001 but failed to leave. The DHS ordered him to appear and explain. At the hearing, he offered the usual excuses but the IJ found him credible yet commenting on the absence of a single shred of evidence in support of his claim for asylum. The Ninth Circuit, citing only its own precedent, holds his testimony alone is sufficient and is corroborated by an Armenian newspaper article. That is enough for the Ninth Circuit who never saw the witness and never heard his testimony. From a cold record the panel accepts the testimony without criticism. 9/18/2008.

Karapetyan refused to submit his fingerprints for evidence. According to the NInth Circuit, the rule on submission of fingerprints was “unclear” despite Karapetyan’s representation by counsel.

Bromfield v. Mukasey, 543 F.3d 1071 (9th Cir. 2008) (also reported on the Blog) 9/16/2008

Bromfield is a Jamaican national who came to the United States as a legal permanent resident. (The court ignores how Bromfield achieved this status). Convicted of sexual abuse of a minor, the government instituted deportation proceedings. Bromfield conceded removability but alleged his status as a homosexual entitled him to asylum and protection under CAT (Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment). He had returned to Jamaica twice without incident. The immigration judge (IJ) found him ineligible for asylum, but concluded the felony conviction was not “serious” as required for removal by the statute and permitted Bromfield to apply for withholding of removal or relief under CAT. In a subsequent hearing the IJ rejected both claims.

In support of his application, Bromfield submitted a 2005 U.S. State Dept. Country Report for Jamaica asserting violence against homosexuals was widespread and perpetrated by public officials. Although Bloomfield was not politically active, the IJ found the only acts of violence were random, not epidemic, foreclosing his application for withholding of removal; INA 241 (b) 93). The IJ rejected the CAT claim on grounds the statute requires evidence the applicant will suffer torture; C.F.R.1208.18 (a)(1)

The Ninth Circuit lacks jurisdiction over a final order of removal of aliens (or lawful permanent residents) who committed an

“aggravated felony” (8 U.S. C. 1252. The Court: “But this provision only applies to “removal orders” and not to applications for asylum, withholding of removal or CAT.” According to the Ninth Circuit panel, the immigration judge did not rule on the “aggravated felony” and “removal orders” are inapplicable to asylum or withholding of removal and therefore jurisdiction lies.

If the application for withholding of removal or asylum is denied, the “removal” order is automatic. This is the type of judicial hairsplitting endemic to Ninth Circuit immigration decisions. The immigration judge ordered Bromfield “removed” for failing to establish his claims. Conferring jurisdiction on itself with this academic distinction, the court read the 2005 Country report (in 2008) differently than the IJ and concluded Jamaica persecuted homosexuals. The IJ regard the alleged Jamaican conduct as “random acts of violence.” The court merely re weighed the evidence.

Without citing a single case other than from their own circuit, the court also said homosexuals were persecuted for their status, which entitled them to a become a “protected group entitling thee to withholding.” But the Jamaican statute does not apply to homosexuals per se, only homosexual conduct in public. “Same thing” says the court.

Invoking its standard of reviewing IJ decisions for “substantial evidence”, the court disagrees with the finding and cites a U.S. Supreme Court case: INS v. Elias, 502 U.S.478 (1992), a Ninth Circuit case reversed by the Supreme Court and on grounds of “political opinion.”

The court sends this case that should have been disposed of in one paragraph back to the IJ for further proceedings.


Cosa v. Mukasey, 543 F.3d 1066 (9th Cir. 2008)

In another rant against Immigration Judges (IJ), the Ninth Circuit complained the hearing judge did not submit “substantial evidence” to support a finding of adverse credibility of the alien seeking asylum who allegedly belonged to a non descript religion in Romania from which she fled. The witness testified she was raped, beaten and persecuted by police for her beliefs; submitted a medical certificate verifying the rape; submitted declarations from fellow believers. Petitioner was the only witness.

No matter what questions the IJ asked of petitioner, the court found fault. How do you determine if a witness is lying? The IJ researched information on; the alien’s religion and asked petitioner question about her religious convictions to which she could not answer. Declarations-not testimony-from co religious are automatically suspect; a medical certificate is easily forged; there is no evidence form the U.S. State Dept on religious persecution of members of her faith, a document the Ninth Circuit frequently relies in granting petitions. 9/15/2008

If an alien flees the country on religious grounds, she ought to know something about her religion. Not necessarily the knowledge of a theologian, but petitioner know almost nothing about her faith. According to the Ninth Circuit, the IJ was unfair in asking “academic trivia”and a conducting a Bible quiz. Petitioner could not even name the four Apostles.(apparently she alleges participation in some form of Christianity).

The Ninth Circuit panel repeatedly reweighs the evidence and the testimony in immigration cases. None of the judges saw or heard the witness. An immigration hearing is not a civil trial requiring admissible evidence or witness cross examination but the IJ must determine the truth of the alien. Immigration hearings are only administrative and the IJ attempts to determine truth from fiction by listening and assessing whether the witness is convincing. None of the Ninth Circuit judges did that in this case and in fact two of the three judges never judged anything at the trial level. 9/15/2008

Chicanos Por La Causa, Inc .v. Napolitano, 544 F.3. 976 (9th Cir. 2008)

Given the Ninth Circuit’s antipathy to immigration judges (IJs) who hear an unending volume of cases, and Ninth Circuit judicial favoritism to aliens in general, nevertheless a three judge panel enforced an Arizona statute revoking business licenses of employers who hire illegal aliens. Unlike other federal courts who insist on federal preemption of state laws attempting to control illegal immigration, the Ninth Circuit panel enforced the Arizona statute; Legal Arizona Workers Act, Ariz. Rev. Stats. 23-211-216. 9/17/2008.

The court reminded readers only a facial challenge to the statute existed, and an “as applied” resolution has not been determined. The court rejected express, implied or field preemption; the Arizona statute met the “savings clause” of the federal immigration statute; no due process violation had occurred. 9/28/2008

Figueroa v. Mukasey, 543 F.3d 487 (9th Cir. 2008)

Only in California. A husband and wife, both illegally in the United States, applied for cancellation of their removal order on grounds removal would result in an “exceptional and extremely unusual hardship” to their children, two of whom are citizens (having been born in the United States but the court omits to say that); 8 U.S.C.1229c (a). In support of the petition opposing removal, a physician testified one of the children had attention deficit disorder and experienced difficulty in maintaining his place in a special pubic school. It is unclear who is paying for medical services. The physician testified it would be inadvisable to return the child to Mexico where comparable medical service is unavailable. Another child, an eight year old daughter, lacked Spanish skills and required eyeglasses.

The IJ found the Figueroas ordered removal under the statute and denied their petition. They appealed to the Ninth Circuit.

The IJ ruling is clearly is a discretionary decision stripping appellate court jurisdiction pursuant to ; U.S.C. 125(a(2) (b) (i). But according to the Ninth Circuit panel, this case presented a question of law because the IJ used the wrong legal standard; 8.U.S.C. 1252 (a) (2) (D).

The IJ found this: [The child] would [not]suffer hardship substantially beyond that which would ordinarily be expected to result from the alien’s deportation and that such hardship would [not] be unconscionable.

The first part of that statement is legally correct and sufficient of itself to deny the petition. But the Ninth Circuit panel says the second statement of an IJ finding of an “unconscionable” result is incorrect. Because the IJ used the wrong legal standard, the Ninth Circuit holds, it has jurisdiction.

The discussion of jurisdiction in Figueroa is more fully set forth in the Ninth Circuit opinion and reflects an exercise in academic hairsplitting. The court holds the statute permits withholding of a removal order if the removal would result in unusual hardship in another country. This is is an incorrect reading of the statute and justifies anyone seeking to avoid removal to allege their medical condition in the United States would not be replicated in an another country. This analysis justifies withdrawing removal orders of any aliens, or their children, because no country in the world exceeds American expertise in medicine.

According to the IJ, the young girl needed glasses. This condition warrants her parents remaining in the United States? The IJ noted that every case involving removal involves some kind of “unusual hardship.” The parents entered this country, had children, one of whom needs special education in public schools, and the other needs glasses.

Aside from the practical dimension of this case, the IJ did apply the correct definition in determining whether petitioners could establish withholding of removal. That the IJ added a second incorrect application is irrelevant. Under standard civil practice, even if the trial court rules incorrectly, the appellate court will uphold the decision if correct under another theory.

Immigration hearings are administrative in nature and do not require the endless repetitive appellate analysis applicable to civil litigation. This unduly lengthy opinion is another illustration of the frustration of the American public in treating immigration hearings as though it was litigation.

The Ninth Circuit also invoke criminal procedure for illegal immigrants. When a truckload of aliens is stopped and arrested, immigration agents must determine their nationality. Agents must be extremely that they only determine that issue, and if they exceed that boundary they may require MIranda warnings. The Fifth Amendment applies to aliens illegally in this country; U.S. v. Chen, 439 F.3d 1037 (9th Cir. 2006). 10/3/2008

Rodriguez v. U.S.A., 542 F.3d 704 (9th Cir. 2008)

In debating the cost of illegal aliens, the role of judicial proceedings is frequently ignored. In Rodriguez, six plaintiffs sued the government for wrongful activity in entering their house in executing a warrant for arrest and removal of an illegal allen. The district court found the agents acted frivolously, for a variety of reasons, and awarded $230,000 in damages and $917,684, in attorney fees. 9/4/2008.

Orozco v. Mukasey, 546 F.3d 1147 (9th Cir. 2008)

.The Ninth Circuit granted a joint motion to vacate and dismiss voluntarily the published opinion in Orozco v. Mukasey, 521 F.3d 1068 (9th Cir. 2008). The court gave no explanation for this order.

Orozco entered the United States by fraudulently misrepresenting his identity. He married a United States citizen, probably born in this country, and somehow adjusted his status. The Department of Homeland Security discovered him and in his administrative hearing before the immigration judge (IJ) Orozco conceded his removability but sought withholding on grounds the border agents inspected his identification at the time of his entry and admitted him to the United States. The IJ denied his request and ordered his removal. Orozco appealed to the Ninth Circuit.

That anyone should clog the courts with this absurd argument is ludicrous. With no explanation, the Ninth Circuit vacated the published opinion. 10/20/2008

Shin v. Mukasey, 547 F.3d 901 (9th Cir. 2008)

Petitioner Shin entered the United States on a six month visa. She obtained the status of lawful permanent resident based on paying a dishonest immigration agent $10,000. She was divorced and had no husband, although representing on her application to adjust her status she was married to a skilled professional. Due to the arrest and confession of an immigration “runner” who identified her and other illegal aliens who bribed him, the IJ ordered petitioner deported.

Shin appealed on grounds the government was estopped from deporting her based on its own misconduct. The Ninth Circuit actually wrote an opinion denying the appeal that could have been disposed of in two lines. Another waste of judicial time.


opez-Rodriguez v. Mukasey, 536 F.3d 1012 (9th Cir. 2008)

See Blog, August 11, 2008: Ninth Circuit imposed the exclusionary rule of the Fourth Amendment to prelude evidence of the INS agent report of an illegal alien. Not evidence, not guns, not drugs, not stole property. The report of the arrest of the alien.


Martinez v. Mukasey, 72 Fed.Appx. 564 (2003)-five years ago and not final!

In a per curium opinion buried in the Fed. Appx. in 2003, the majority of a three judge panel found no inconsistency in Martinez’ application for asylum merely because he lied on his application. According to the dissenting judge, Martinez “completely invented” a new story in his hearing for asylum.

On November 7, 2008 an opinion allegedly written on October 6, 2008 was withdrawn without explanation and a different panel of judges wrote “A new Opinion will follow in due course;” 2008 WL 4459090. Westlaw shows no opinion cited on October 6, 2008, the date this order states the opinion is withdrawn. 11/16/2008

Nehad v. Mukasey, 535 F.3d 962 (9th Cir. 2008)

The INA gives applicants in removal proceedings the right to retain private counsel but there is no Sixth Amendment correlative right as in criminal cases; 8 U.S.C. 1362. According to the Ninth Circuit, the right to counsel includes the right to “competent counsel,” and if the latter is ineffective it deprives applicants of their right to due process under the Due Process Clause of the Fifth Amendment; Blanco v. Mukasey; 518 F.3d 714 (9th Cir. 2008.). 7/31/2008

There is no Supreme Court authority for this rule, only Ninth Circuit precedent. To invoke this rule, the Ninth Circuit uses cases decided in criminal cases under the Sixth Amendment and rules of Professional Conduct for lawyers in civil cases. An immigration hearing is neither civil nor criminal; it is an administrative hearing. Applicants illegally in this country are able to invoke the Due Process clause and inapplicable rules in civil and criminal cases to prevent their departure. The Constitution applies to citizens, the Sixth Amendment is inapplicable as are rules for counsel in civil cases.

Kalilu v. Mukasey, 516 F.3d 777 (9th Cir. 2008)

The B IA found the petition “frivolous” in his application for asylum. He moved to re open to establish an adjustment of status based on his marriage. The Ninth Circuit panel allowed the request despite the fact his application was frivolous (and he could have requested adjustment of status at his original hearing.).Petition granted. 2/14/2008

Waddington v. Sarausad, 129 S.Ct. 823 (2009). Reversing the Ninth Circuit on the single issue of accomplice liability, the Supreme Court again reminded federal courts of the limitations of the Anti Terrorism and Effective Death Penalty Act ( AEDPA) in reviewing state court decisions. This case is reviewed in the Blog.

Habeas Corpus: Sixth Amendment Confrontation Clause

Slovik v. Yates, 556 F.3d 747 (9th Cir. 2008)

After Slovik was convicted of assault, the California Court of Appeal affirmed, the California Supreme Court denied review, the California Superior Court, the Court of Appeal, the California Supreme Court and the U.S. District Court judge all denied habeas corpus. The Ninth Circuit disagreed. Again.

A bar fight occurred and witnesses testified for both the victim and the defendant Solovik. Everyone concedes the witnesses were questionable, yet the jury ultimately believed the prosecution. During the trial the defense attorney asked one of the victims (having been hit by a pool ball thrown by Slovik) if he was on probation. The witness answered “no.” Counsel for defendant wanted to approach the witness presumably to establish he was on probation for the crime of driving under the influence of alcohol. The judge denied counsel the right to pursue the issue.

In California, misdemeanors are inadmissible to impeach and the ruling was correct. But the Ninth Circuit unearthed the Confrontation Clause of the U.S. Constitution, held the defendant was denied the right to cross examine, and reversed the conviction.

This is another instance of appellate judges with no understating of trials. The jury listened to barflies, watched them impeached and ultimately decided one side was lying less than the other. That the jury would have been influenced by someone who possibly lied about his probationary status, when other witnesses also were on probation, is incredulous. The Ninth Circuit panel saw none of the witnesses, did not deliberate among jurors who knew none of the witnesses were church choir members, yet found one question about probationary status sufficient to set aside a verdict despite the rulings of numerous other courts on appeal and habeas corpus.

Habeas Corpus: Timelines

Chaffer v. Lockyer, 542 F.3d 662 (9th Cir. 2008) 9/30/2008:

The Ninth Circuit has finally asked the California Supreme Court to resolve a question repeatedly confronting federal courts in computing timelines in state habeas corpus proceedings. In capital cases, California court rules require habeas petitions to be filed within a specific time period. In non capital cases, the filing must be “within a reasonable time.” This amorphous time line provides no guidance and the Ninth Circuit has commented on this irresolution when reviewing federal habeas petitions. The Ninth Circuit suggested the California Legislature or the California Supreme Court correct this lack of a “bright line” but without success. A Ninth Circuit panel has now certified the question to the California Supreme Court.

In Crater v. Galaza, 491 F.3d 111 (9th Cir. 2007) a three judge panel of the Ninth Circuit upheld Congressional enactment of 28 U.S.C. 2254 (d) (1) formally known as the Antiterrorism & Effective Death Penalty Act (AEDPA). A petition for rehearing and rehearing en banc was denied. Five judges dissented from the denial of rehearing and one dissenter wrote an opinion contending Congress lacked power to enact AEDPA.

Crater became the law of the circuit but another Ninth Circuit panel was considering the same issue in Irons v. Carey, 505 F.3d 846 (9th Cir. (2007) and decided after Crater. One of the judges in Irons sought supplemental briefing from counsel on the Constitutional authority of Congress to enact AEDPA, clearly signaling Congress acted in violation of the separation of powers doctrine. After supplemental briefing, the Irons court grudgingly acknowledged Crater foreclosed their opinion as precedent in the Ninth Circuit. For that reason the author of the Irons opinion wrote the dissent in Crater. Only four other judges joined his opinion.

The Crater court confines itself to a discussion of separation of powers and the right of Congress to limit federal intervention in reviewing state court convictions. AEDPA restricts federal courts from issuing a writ of habeas corpus unless the claim asserted by a state court prisoner “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Although this language is not explicit, the statute unmistakably aims to curtail the power of federal courts.

Although the Supreme Court has not expressly determined the constitutionality of AEDPA, the Justices have had the opportunity to address the issue and declined to do so; Williams v. Taylor, 529 U.S. 362 (2000).

Reasonable minds can differ on the separation of powers doctrine. But the language of the dissenting judge in the denial of rehearing is disturbing, even approaching arrogance. The judge frequently refers to the curative power of federal courts in correcting the judgment of state courts. “Thus, the federal court is required under AEDPA to uphold a state court proceeding that it determines violated the Constitution. . . Other language proclaims the superiority of federal courts in reviewing state court convictions different than their own interpretation. The irony lies in a federal court correcting state courts when the Supreme Court has reproached the Ninth Circuit repeatedly for ignoring precedent and wrongly interpreting the law in 21 out of 22 cases during the 2006-2007 term.

Vindictive Prosecution: In an earlier Blog (Click on Blog, above) entitled “Vindictive Prosecution” we reviewed USA v. Jenkins, 504 F.3d 694 (9th Cir. 2007) foreclosing prosecutors from prosecuting Sharon Jenkins for a crime she testified to committing on the witness stand defending herself from charges of another crime.The petition for rehearing en banc was, astonishingly, denied over the dissent of seven Ninth Circuit Judges. The lead judge in dissent wrote this: “By concluding that prosecutors should have sacrificed the resources necessary to pursue the charges before Jenkins admitted to the crimes under oath, the opinion oversteps our judicial function . . .the Jenkins opinion creates the preposterous rule that a defendant can shield himself from future prosecution for unrelated crimes by openly admitting to them on the stand; Jenkins;.”

Probable Cause and Qualified Immunity: 9/22/2008

Torres v. City of Los Angeles, 540 F.3d 1031 (9th Cir. 2008); rehearing: 548 F.3d 1197 (9th Cir.

Gang killings are indisputably the most difficult cases to prosecute. Witness intimidation is rife and witnesses lack credibility or are offered immunity. A witness in Torres v. City of Los Angeles, the girlfriend of a man who killed two other gang members, identified Torres as a passenger in the car when the driver (subsequently arrested) fired the shots. Admittedly the identification of Torres was imperfect but the Ninth Circuit ignored the fact that her boyfriend shot two men during a car chase. A passenger riding in a moving car with a driver involved in a shooting cannot describe all the details.

Police arrested Torres based on the witness’s incomplete identification and with information he was a gang member who had flashed gang signals to the occupants of the other car. After reviewing the evidence, the panel found the officers lacked probable cause.

The evidence of Torres’ culpability is a close question but enough to at least arrest him. Not in the Ninth Circuit. And this panel denied the officers qualified immunity, despite the fact the trial judge ordered all officers dismissed from the case.

Note: One of the cases cited by the Ninth Circuit panel to support their conclusion the officers lacked probable cause to arrest Torres was Devenpeck v. Alford, 543 U.S. 146 (2004)-a Ninth Circuit case reversed by the Supreme Court.

Almousa v. Mukasey, 318 F.3d 738 (9th Cir. 2008): Published in Blog: 9/27/2008

Fourth Amendment: Strip Searches: Bull v. City & County of San Francisco, 539 F.3d 1193 (9th Cir. 2008); Published in Blog: 8/27/2008. The Ninth Circuit has voted to rehear the case; 558 F.3d 887 (2009).

Mays v. Clark, 807 F.3d 968 (9th Cir. (2015)

Apparently the 9th Circuit has finally gotten the word to stop ignoring Supreme Court precedent and follow the law.  In a state habeas case admittedly containing evidence subject to reversal, the 9th Circuit’s most liberal judges actually affirmed a state court of appeal -although the facts are “troubling”, said the panel.

This case was ripe for reversal under 9th Circuit rules; a Miranda problem the panel would have solved in favor of reversal if not for the Supreme Court. Ninth Circuit judges like Miranda cases because the facts are easily reinterpreted and state court decisions ignored.

But the Supreme Court did deny cert. in a different excessive force case decided earlier by a 9th Circuit panel .  Perhaps the Mays case is just an accident.

Four 9th Circuit Cases Reversed (2016) [See, Section on Recent Cases]

Three weeks prior to the end of the current Supreme Court term the Justices have reversed four U.S. Court of Appeals Ninth Circuit decisions. Once again, the 9th Circuit has retained the award for the most reversed federal circuit court in the United States. Ignoring Supreme Court precedent and ruling on habeas corpus petitions de novo instead of the deferential mandate required by the Antiterrorism & Effective Death Penalty Act, 9th Circuit judges repeatedly tried to evade the statute by collateral attack of habeas corpus. All petitions for writs in these cases were previously denied by the California Supreme Court and federal district courts. Kernan v. Honojosa, 2016 DJDAR 4604.

Supreme Court animosity toward the 9th Circuit rose sharply in Johnson v. Lee 2016 DJDAR 5160. Filing habeas corpus in federal court requires all prior state court habeas corpus petitioners to have initially exhausted all their claims filed on direct appeal from a conviction in state court. The Supreme Court has previously held the procedural rules of a state court must be “firmly established and regularly followed.” The petitioner in Lee contended the California Supreme Court had not followed this rule.

After the California Supreme Court denied her petition, Lee filed habeas corpus in federal district court. Denied in that venue, she appealed to the 9th Circuit where the panel ordered the warden in California to prepare an analysis of the two year period the California Supreme Court had denied habeas without following the Supreme Court rule. The warden submitted a report but the 9th Circuit panel disliked the results and reversed the conviction for murder.

Reversed and remanded by the Supreme Court, the 9th Circuit panel reversed again. In review of this second decision the Supreme Court discounted the panel again and wrote “[T]he Ninth Circuit decision profoundly misapprehends what makes a state procedure adequate.” The California Supreme Court had firmly established and regularly followed the federal rule.

The Supreme Court added that federal habeas corpus will not lie when a petitioner does not allege trial court error on appeal from state court judgment of conviction. Lee never raised the alleged claim of procedural error on appeal from the judgment in state court. The Supreme Court reversed again. A California law professor commented that California had “notoriously unclear habeas procedures.” Apparently he has not read 9th Circuit reversals on habeas corpus.

Another procedural error occurred in Spokeo Inc. v. Robins, 2016 DJDAR 4566. Article III of the U.S. Constitution requires federal courts to limit their jurisdiction to “cases and controversies,” not abstract or hypothetical issues. Characterized as “standing,” the courts have not always agreed on the issue because each case is factually based and the definition ambiguous. In any event, personal injury is required, subject to judicial review and warranting the authority to provide a judicial remedy. According to the Supreme Court, when analyzing Article III standing the court must consider “concreteness” and “particularization.”

The Supreme Court discussed these issues in some detail and explained the distinction between the two elements. The justices concluded the 9th Circuit panel failed to satisfy both. “Particularization” refers to personal injury; “concreteness” requires a real injury, not an abstract one. The Supreme Court reversed and remanded for the 9th Circuit panel to apply these rules.

Unquestionably, procedural rules and their application lack dramatic impact. Yet, had the 9th Circuit decisions prevailed, an inmate serving a sentence for murder would have been released. Johnson v. Lee was tried in 1997. In Kerman v. Hinojosa the inmate was serving nineteen years for armed robbery. In both these cases retrial would have been highly unlikely and both inmates released.

Despite these cases, a 9th Circuit panel continued to reverse state courts collaterally on habeas corpus. In Currrie v. McDowell, 2016 DJDAR 5486, a murder case tried in 1995, the panel reversed the state court conviction on grounds the prosecutor peremptorily challenged a black juror under the rule in Batson v. Kentucky, 476 U.S, 79 (1986). The Batson decision and its result, invented by the Supreme Court without judicial precedent and mandating a new trial absent any legal error, are grossly disproportionate to the crime and completely unrelated to the trial and jury verdict. In Currie, a legally error free trial is reversed after two decades for excusing a juror. With a retrial unlikely, the 9th Circuit majority panel releases a convicted murderer.

In Currie, the murder conviction was tried by a California trial judge who denied the Batson motion; appeal to the Court of Appeals denied; review by the California Supreme Court denied; petition for a writ in federal district court denied. But the 9th Circuit three judge panel who have never tried a criminal case reversed fifteen judges. A1995 case ready for the Supreme Court.

That a murder case should be reversed by a federal court rendered in a solid conviction is disgraceful. The killer will go free on evidence entirely unrelated to the crime. And this 9th Circuit practice has been repeated repeatedly resulting in injustice to the people of the state.

The U.S. Constitution includes habeas corpus applicable to federal courts. No duplication of this rule in the Constitution applies to the states, and for over a century the federal court s never applied its Constitutional language to state courts except in rare cases involving sentencing. In Fay v. Noia, 372 U.S. 391 (1963) a 6-3 decision, Justice Brennan discovered an historical common law indigenous to habeas corpus and applicable to state court judges who ruled on federal questions.

As Congress continued to expand federal law, the federal courts began reviewing state court decisions involving questions of federal statutory and Constitutional questions. In time, the Supreme Court removed 9th Circuit habeas corpus jurisdiction in Fourth Amendment cases. Later, the Court ended 9th Circuit habeas review of state parole hearings. In the last decade the Supreme Court has frequently reversed the 9th Circuit in other state cases and tightened federal habeas corpus substantive and procedural review. These decisions have repeatedly reversed the 9th Circuit in innumerable decisions involving Constitutional issues.

The time has come for the Supreme Court to reinterpret federal habeas corpus law and remove the 9th Circuit from any further jurisdiction over state court decisions. Not only will removal reduce the endless appeals of 9th Circuit mandated retrials and the cost and interference with state sovereignty, the record would confirm finality of state court judgments and stop the endless reversals resulting in injustice. No reason justifies two jurisdictions trying the same case twice.


McDaniels v. Kirkland, 813 F.3d 770 (9th Cir. 2015)

Twenty years ago Congress enacted the AntiTerrorism and Effective Death Penalty Act (AEDPA;1996) limiting federal appellate courts, under strict  conditions, from granting  habeas corpus petitions overruling state court judgments. Although the Act applied to all federal appellate courts, the reversal record of the 9th Circuit provided the rationale for the statute.

Innumerable 9th Circuit cases were reversed by the Supreme Court during the two decades that followed enactment of AEDPA.  Ending the second decade in December, 2015, the 9th Circuit wrote McDaniels v. Kirkland, 813 F.3d 776 (9th Cir.(2015) and Shirley v. Yates., 2015 WL l 7422606.  Both cases cited the Supreme Court decision in Batson v. Kentucky, 476 U.S. 79 (1986). Batson, predicated on the all purpose Equal Protection Clause, disallowed peremptory challenges of potential jurors based on their race. 

In McDaniels, the court in a rehearing wrote that the pretrial written questionnaires of jurors in state trial court had been lost, and the record of defense objections to prosecution peremptory challenges on voir dire was challenged. Neither issue in McDaniels was submitted as part of the state appellate court habeas file. The Supreme Court decision in Cullen v. Pinholster, 563 U.S.170 (2011) prevents any federal appellate court on a habeas habeas petition to review evidence not presented in the state appellate court habeas review.   But that rule did not apply  in this case wrote the 9th Circuit.

The 9th Circuit rehearing in McDaniels held the evidence of a Batson violation was argued in the state trial court and therefore the federal court on habeas can consider all evidence even if the petitioner did not present it to the state appellate court. This evasion ignores Supreme Court precedent in Pinholster and common sense.

In Shirley v. Yates, a 9th Circuit panel decision written by a judge who had never tried a criminal case and who read the voir dire transcript of a state court trial, tried to find some reason for reversal of the judgment and state court confirmation on appeal. In fact, he opened the decision with an obvious dislike of the sentence imposed on the defendant.  Unable to find any state trial court error under conventional 9th Circuit reversals, no improper jury instructions on the merits or the sentence, no  ineffective counsel, no jury misconduct, no prosecutorial misconduct or failure to disclose exculpatory or mitigating evidence, the author of the Shirley opinion focused on voir dire.

The result exemplified an academic hair splitter opinion, lawyerly parsed, and unintelligible frustrating justice by reversing the California Court of Appeal and causing and freeing a guilty man unless the prosecutor can find all the witnesses. In the absence of a rehearing, the panel decision will cause another Supreme Court reversal to increase the 9th Circuit Shirley record.

The evidence in the case supported the jury verdict and denial of a motion for new trial.  Once again a 9th Circuit panel abuses its habeas authority, disposes of AEDPA on unsupported grounds, and ignores the Supreme Court warning to accept the judgment of the trial court judge in a Batson hearing. A guilty man escapes on  grounds of an alleged prosecution challenge based on race.

The Supreme Court has repeatedly written that the issue of voir dire and the use of peremptory challenges depends on an intangible variety of factors other then race.  Conduct, demeanor, uncertainty, language, and a judgmental sense are incapable of explanation.  Race does not necessarily result in the exercise of a challenge, and an appellate court reading a cold record cannot possibly determine factors the prosecutor considered at the trial.

The one person who can judge the rationale of a prosecutor in excusing a juror is the trial court judge.  A neutral, the trial judge can sense a reason for the dismissal or not.  The Supreme Court has stated the trial judge decision in a Batson hearing is virtually dispositive.  In this case the trial judge supported the prosecutor.The 9th Circuit panel who never saw any of the jurors, never heard them, tried to compare the questions with other jurors.   The questions can be exactly the same, and one juror accepted while the other excused unrelated to race.

This practice, named a “comparative juror analysis” enabled the panel to undertake an alternative Batson objection never made in the state appellate court or trial court.  Those judges, said the panel, should have rendered the comparative juror analysis.  This incoherent rule, again invented by the Supreme Court, requires the reviewing court to compare the questions and answers by excused  and non excused jurors in jury questionnaires and the trial record on voir dire. According to the 9th Circuit, the comparative juror analysis rule is the “only tool available for review.” This statement reflects the subjective opinion of a judge rendering judgment of the prosecutor without knowledge of any collateral facts.

Pre trial questionnaires may reflect some factors the prosecution (and the defense) want to know, but written responses are no substitute for actual questioning by counsel.  Answers to questions on paper are important, but verbal answers to questions the prosecution asks of a potential juror in court are more critical. The voice and personal presence of a potential juror outweighs the “comparative analysis” of reading a cold voir dire transcript.  The answers of the juror to prosecution questions on voir can be indecisive, inconsistent with the questionnaire, abrupt, querulous, language mistakes, uncertainty, or demeanor.  Any number of personal factors warrant exercise of a peremptory challenge, despite similarity of questions and answers between jurors excused and non excused.

Prosecutor decisions to excuse a potential juror are not based solely on the individual person. Intangible issues include the nature of the crime(s) charged, the experience of defense counsel, the judge, the witnesses level of credibility, the possible sentence, media publicity, use of accomplices, the composition with other potential jurors, and multiple defendants. In capital cases the attitude of a juror in imposing the death penalty, in addition to deciding the merits, may justify excusing a juror.

In the years that followed Batson, the courts were flooded with endless delays holding hearings prior to trial, and the decision provided an automatic ground for appeal in state and federal courts.  The 9th Circuit eagerly seized on Batson as another method to reverse state courts but was reversed by a unanimous decision of the Supreme Court with the comment “The 9th Circuit merely substituted its own opinion.” Rice v. Collins, 546 U.S.333 (2006). 




Garcia v. Long, 808 F.3d 771 (9th Cir. 2015)

There is something unusual about this case. It was initially decided on an unknown earlier date but the published date is in December, 2015.

The facts in the case are allegations of a sex violation to a minor who testified.  The prosecution also introduced a lengthy confession by the defendant. The jury convicted. The California Court of Appeal affirmed, the California Supreme Court denied review, as did the federal district court on habeas.  The defendant appealed to the 9th Circuit..

The argument applied to the Miranda warnings given by officers to the defendant pre trial, and its judicial interpretation of the response by the defendant.  The legal issue was another squabble over a rule invented by the Supreme Court. The 9th Circuit panel, as usual, ignored the two California courts, the federal district court and AEDPA.  This is another case where two jurisdictions try the case-state and federal.  The 9th Circuit demonstrates no deference to the state as required by the Supreme Court and, of course, the defendant goes free.

The defendant testified in court comparable to his confession to officers. Now he is  released, the minor will have to testify again and endure the experience-if she want to go to court again-at a re trial. As of July 9,2016 state attorney general Harris has done nothing.

Another state case reversed by the 9th Circuit “we know better” on habeas corpus, and that federal  decision should be appealed to  the Supreme  Court.

The purpose of the Miranda rule is to avoid involuntary confessions.  Instead, the courts argue over the language used when the defendant raises no issue of compulsory confession initiated by police. The public pays a heavy price for this rule.

U.S. v. Lee, 821 F.3d 1124 (9th Cir. 2016)


A dissenting judge in the U.S. 9th Circuit Court of Appeals has finally written a scathing  accurate dissent in a case and commented on repeated jurisprudential clashes between the court and the U.S. Supreme Court. U.S. v. Lee. Other 9th Circuit judges have previously dissented in opinions within the boundaries of submitted cases, but not always challenging decisions of the circuit in the language of Judge Ikuta in Lee.

For the last decade the 9th Circuit, invoking habeas corpus on Constitutional issues, has repeatedly reversed state supreme courts within its federal jurisdiction, but the Supreme Court has reversed that court more than any other federal appellate court. During the described era the Justices stripped 9th Circuit jurisdiction in state Fourth Amendment issues and in state parole hearings: “state parole is none of your business.”

In Cavasos v. Smith, 132 S.Ct. 2 (2011) a 9th Circuit habeas panel reversed a state court jury conviction two times on grounds the defense presented a better case at trial. Reversed each time by the Supreme Court, instead of the panel writing another opinion, an unknown person contacted the Governor’s office. In two weeks Governor Brown granted the defendant clemency.

In 1996 a frustrated Congress enacted legislation restricting federal habeas corpus intervention by all federal courts on state court judgments. In the Anti Terrorism & Effective Death Penalty Act, a federal court could only overrule state court decisions unsupported by “clearly established” Supreme Court law-not local precedent. Prior to the statute, the 9th Circuit on habeas corpus had reviewed state decisions de novo under rules on direct appeal.

Confronted by the statute, Ninth Circuit judges no longer allegedly relied on their own interpretation of the Constitution but introduced the Sixth Amendment right to counsel. The Supreme Court had already fulfilled the right of an accused to jury and counsel. The 9th Circuit invented a supplemental issue requiring “effective” counsel. These cases formed the majority of 9th Circuit reversals, each time panels criticizing defense counsel for ineffectively conducting an investigation or trial. Almost every case involved the death penalty, and confirmed the objective of a majority of 9th Circuit judges seeking to terminate capital punishment.

The 9th Circuit undertook another interpretation of “clearly established” Supreme Court decisions. In Batson v. Kentucky, 476 U.S. 79 (1986) the Supreme Court had held prosecutors could no longer peremptorily challenge potential jurors on grounds of race. The 9th Circuit immediately applied the case to overrule a state court by asserting the prosecutor had challenged a potential black juror. The prosecution sought certiorari of the decision, and the Supreme Court reversed with the comment : “The Ninth Circuit court substituted its own opinion.”

Frequent reversal of 9th Circuit habeas corpus opinions of state cases compelled the Supreme Court to eventually require federal courts to “defer” to state courts. Despite the rule, the record of Supreme Court reversals continued and led several 9th Circuit judges to refer to their embarrassment year after year. Judge Ikuta wrote: “Judicial disregard for Supreme Court habeas jurisprudence is inherent in the opinions of the Court of Appeal for the Ninth Circuit here under review.” This language summarizes judicial disregard of the law. In one case a 9th Circuit judge criticized numerous state court “mistakes, ” ignoring the record of the 9th Circuit.

Concerned with the Supreme Court rule mandating “deference” to state courts, 9th Circuit judges discovered another method of reversing cases in habeas corpus. Statutory reference under AEDPA permits reversal only if the state court decision constituted an “unreasonable interpretation” of federal law or of the factual record. The word “unreasonable” is an abstract word, contingent on the facts and subjectively decided. This statutory interpretation requires federal habeas corpus review to merely conclude the state court decision “unreasonable”. As the Supreme Court said, “merely a substitution of opinion.”

The 9th Circuit found yet another alternative to reverse state court convictions under habeas corpus and apply the rules of direct review. After the state supreme court affirmed a conviction, the defendant filed habeas in federal court. The 9th Circuit allowed the district court to conduct hearings on evidence never submitted in state court nor alleged on appeal. The Supreme Court has discontinued this unfair process.

A federal district court judge, ignoring the Supreme Court and its repeated reversal record of the 9th Circuit, and oblivious to federal or state law, asked a habeas petitioner to rewrite his petition to argue the California death penalty unconstitutional. The U.S. Supreme Court and the California Supreme Court have both repeatedly rejected this argument for several years, the former as recently as two weeks ago denying certiorari. Even the 9th Circuit reversed the district court. Boyer v. Chapell, 793 F.3d 1092 (9th Cir. 2015).

Another federal district court judge, who probably never tried a criminal gang case, decided to overrule the California Supreme Court affirmance of a conviction in a case tried in 1985,and a denial of certiorari by the U.S. Supreme Court. Williams v. Davis, 2016 WL 1254149. Gang cases are obviously the most difficult for the prosecution. Witnesses fearful of retribution, immunized accomplices, witnesses who recant or testify inconsistently, and questionable identification. This judge granted habeas in a case 35 years old and impossible for the prosecution to retry when witnesses willing and able to testify have either died or unavailable.

In Williams, a single federal judge retrys a case, ignores a unanimous jury verdict, alleges the prosecutor withheld witness notes from the defense, and chastises the California Supreme Court opinion. The law thirty five years ago did not require pre trial prosecution discovery. And, according to the district court, the California criminal justice system is “dysfunctional.” Unfortunately, the judge forgot to mention this thirty five year old case does not include 9th Circuit reversals as relevant.

Reading Supreme Court cases reflects policy decisions of a majority, not the law. Many of these judges oppose the death penalty and have used excuses consisting of prosecution misconduct, ineffective assistance of counsel, voir dire challenges, and “lawyerly parsed” [Supreme Court] jury instructions, or penalty errors. The Supreme Court has tightened the habeas rules in criminal cases and Congress has attempted to limit federal jurisdiction. The Supreme Court should strip federal habeas corpus review comparable to their decisions on the Fourth Amendment and parole.

Granting habeas petitions not only affects the lives of victims, families and friends. Retrying a case several years after conviction often proves impossible. Incredibly, the attorney general who represents the state has made no comments on the 9th Circuit, more concerned with child truancy, and ignoring her commitment to serve four years while rying to get another job.

The governor, attorney general and the state legislature have done nothing to limit federal interference in California courts and the repeated hearings, release of inmates, delay and cost. The governor wants to spend billions on a train, the attorney general travels around the state soliciting votes, and the legislature more concerned about issuing drivers licenses increasing traffic the City of Los Angeles tries to control. Although not entirely alone, at least one voice is crying in the wilderness.


Ayala v. Davis, 135 S.Ct. 2187 (2015)

 Ayala v. Davis illustrated another 9th Circuit device to stall imposition of the death penalty evidenced by its per curiam opinion written by the same judge who has never affirmed a death penalty conviction in state courts. The Supreme Court reversed.

In Davis v. Ayala,135 S.Ct. 2187 (2015) the Supreme Court rejected a Batson motion granted by the 9th Circuit decision in Ayala v. Wong, 756 F.3d 656 (2014). On remand, the Justices did not address other Ayala claims, including a claim of state violation of the Vienna convention. So, now the 9th Circuit on remand had to review a claim not resolved in its original reversed opinion. And critics ask why executions take so long.

The district court had denied Ayala’s Vienna motion but neither the 9th Circuit nor the Supreme Court ruled on it.  Had the 9th Circuit found in favor of Ayala in its per curiam opinion  (2016 WL 61002), another appeal to the Supreme Court would have been filed by the state. Fortunately, the 9th Circuit denied the Vienna claim with knowledge the Supreme Court had already denied similar claims in state courts.

This case is not an unusual 9th Circuit device for delay.  On appeal from the district court, leave some claims without decision and rule on other claims.  If the Supreme reverses the claims asserted, it cannot rule on claims not addressed at the 9th Circuit level and require remand and resolution, another hearing-and possible appeal again to  the Supreme Court.

For a discussion of the original case, see above, Davis v. Ayala, 135 S.Ct. 2187 (2015).

Jones v. Chappell, 806 F.3d 538 (9th Cir. 2015) & Deck v. Jenkins, 814 F.3d 954 (9th. Cir.2016)

A federal  district court judge in Jones decided the California death penalty was unconstitutional on grounds it violated the Eighth Amendment.  The judge ruled, citing no case, after encouraging the petitioner to amend his original petition which had not alleged any Eighth Amendment violation.  On appeal, the 9th Circuit panel cautiously reversed the district court pursuant to a Supreme Court decision disallowing new Constitutional rules by federal appellate courts on collateral  review.  The 9th Circuit has ignored that rule indirectly for over a decade.

The 9th Circuit appellate panel in Jones cited Teague v. Lane, 489 U.S. 288, a case holding that “federal courts may not consider novel constitutional theories on habeas review. That principle serves to ensure that gradual developments in the law over which reasonable jurists may disagree are not later used to upset the finality of state convictions valid when entered.” Sawyer v. Smith, 497 U.S. 227.The 9th Circuit has reversed so many state court cases by citing its own precedents, and ignoring or distinguishing Supreme Court decisions, that its panel decision in Jones was a surprise.  The panel reversed the district court.

But apparently other 9th Circuit panelists did not agree, and in Deck v. Jenkins the 2-1 majority wrote one of the worst opinions ever-and that is saying a lot. In Deck, six judges, responding to denial of an en banc hearing, wrote a scathing dissent contending the majority panel reversal of the state court decision disrespected Supreme Court decisions, particularly Davis v. Ayala, 135 S.Ct. 2187 (2015).  In Davis the Supreme Court specifically lashed the 9th Circuit verbally for ignoring AEDPA. According to the Supreme  Court, federal habeas corpus exists only to review the failure of the state court procedural machinery.  Never mentioned by ;the panel majority in Deck.

The 2-1 majority in Deck contended somehow Brecht v. Abrahamson, 507 U.S. l619 undermined AEDPA.  Aside from the dissenting judges in Deck, how this decision  could possibly occur was repudiated by a footnote in the dissenting opinion.  The late Justice Scalia citied fourteen cases of Supreme Court reversals of the 9th Circuit for failing to apply AEDPA.

This decision in Deck, surely to be granted cert., ought to be the final straw for the Supreme Court in allowing 9th Circuit jurisdiction in habeas cases from state courts.